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For Senators Mike Duffy and Pam Wallin, the fundamental question is not whether they fiddled their expense accounts. It is whether they even qualify under the Constitution to be members of Parliament’s upper house.

This is the real import of the latest Senate scandal. Those who are not “residents” of the provinces or territories they purport to represent can’t sit in the Senate. Period. The Constitution is quite clear.

Yes, Duffy has promised to pay back the more than $42,000 in housing allowances he obtained by claiming a primary residence in Prince Edward Island. And yes, Wallin has reportedly agreed to repay some of the $350,000 she took as recompense for flights to undisclosed locations.

Yet as they try to deal with these misspending charges, both are acknowledging something far more serious. They don’t live in the provinces they claim to represent — at least not in the way most Canadians would understand.

Indeed, the Star has reported she holds an Ontario health card — a privilege granted only to permanent residents of Ontario.

Duffy has given up the fiction that he lives in Prince Edward Island, the province he claims to represent, and has admitted that his real home is the Ottawa suburb of Kanata.

For government and Senate this is a nightmare. Conservatives Duffy and Wallin are not the only senators who appear to be afoul of the constitutional residency requirement. Conservative Senator Dennis Patterson of Nunavut is also under scrutiny. And there could be more, both Liberal and Conservative.

Former senator Lowell Murray has said the residency question could spark a constitutional crisis. He’s right.

I’m not sure that the opposition parties understand this. But the government certainly does. Asked about the expense scandal Monday, government house leader Peter Van Loan spoke instead to the question not asked, noting that both Duffy and Wallin “own property,” maintain “deep and continuing ties” and “spend considerable time” in the provinces they purport to represent.

It was a lawyerly answer by a government that appears to be preparing for a legal challenge.

The question of residency is crucial to the very idea of the Senate. In the lead-up to Confederation 146 years ago, Maritimers in particular wanted a Senate that would give smaller provinces real clout in the new federal government.

To that end, section 23 of the British North America Act of 1867 requires any senator to be “a resident of the province for which he is appointed.”

Section 31 is even clearer, noting that a senator’s place in the upper house “shall become vacant” if the occupant “ceases to be qualified in terms of . . . residence.”

The only exemptions from the residency rule are senators who, by virtue of holding government “office” are required to live in Ottawa.

In short, if Duffy is made a cabinet minister, he won’t have to live in P.E.I. But if he remains an ordinary senator, he must be resident there or forfeit his seat.

But what does it mean to be a resident? While the term may have been obvious in 1867, constitutional experts aren’t sure it is now.

University of Toronto political scientist Peter Russell says he hasn’t been able to find an instance where senate residency was defined by Parliament or the courts.

Vancouver constitutional expert Ted McWhinney, a former Liberal MP, argues that in an era of dual nationality dual residency is only logical. “Does it really matter today? I think it’s where your roots are.”

Both say it’s probably up to the Senate to define what residency means. If so, this is good news for Duffy, Wallin and potentially others. Their Senate comrades could decide they live in the provinces they represent — even when they don’t.

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